COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and Decker Argued at Alexandria, Virginia

BARRY JUSTIN LEVENSON OPINION BY v. Record No . 1884-16-4 JUDGE W ILLIAM G. PETTY DECEMBER 12, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Brett A. Kassabian, Judge Alberto Salvado (Salvado, Sal vado & Salvado, PC, on brief), f or appellant. Donald E. Jeffrey, III, Senior Assistant Attorney General (Ma rk R. Herring, Attorney General, on brief), for appellee.
Barry Justin Levenson challenges his conviction of aggravated involuntary manslaughter in violation of Code § 18.2-36.1. 1 He contends that the evidence was insufficient to convict him because the victim’s medical treatment decision was a supersedi ng act that caused his death. We disagree and affirm.

1 Code § 18.2-36.1 states in relevant part, A. Any person who, as a result of driving under the influence in violation of clause (ii), ( iii), or (iv) of § 18.2-266 or any l ocal ordinance substantially simila r thereto unintentionally causes the death of another person, sha ll be guilty of involuntary manslaughter. B. If, in addition, the conduct of the defendant was so gross, wanton and culpable as to show a r eckless disregard for human life, he shall be guilty of aggrav ated involuntary manslaughter

. . . .PUBLISHED‐ 2 - B ACKGROUND In the early morning hours of May 9, 2015, Levenson crashed in to the rear of a dump truck that was stopped in a c onstruction zone. Levenson was in toxicated and was exceeding the speed limit. The impact from the crash caused extensive damage to the vehicles and injured both Levenson and his passenger, De von Martin. Martin was transport ed to the hospital where he was diagnosed with an injury to the spleen and a blood clot forming on the right iliac artery. The blood flow to Martin’s leg was r estricted and, according to exp ert medical testimony, Martin risked irreversible damage and t he loss of his leg within five hours. To preserve the leg, Martin’s doctor recommended that the blood thinner heparin be a dministered and that a stent 2 be inserted into the artery. The doc tor was aware that the use of heparin could cause life-threatening bleeding from M artin’s injured spleen. Howeve r, a team of three doctors in consultation formed a plan to de al with the spleen bleed if the situation became life threatening. The use of heparin was recommended because insertion of a stent without it would be substantially riski er. Amputation of the leg was mentioned onl y as a last option. Martin was asked for consent to proceed with the treatment. At the time h e gave consent, he was completely lucid, coherent, and logical. Aft er the heparin was administer ed, Martin began bleeding in the brain from an injury undetecte d by an earlier CAT scan. He die d as a result of that bleeding. The only issue before us on appeal is whether the trial court erred in refusing to s trike the evidence on the bas is that the evidence was insufficien t to prove manslaughter because Martin opted for a discretionary c ourse of treatment, including the use of heparin, there being several alternate [sic] options for care of his injuries which would have insulated him from death, his passing being the product of an int ervening and superseding act of embarking on an injurious course of action which caused his demise.

2 A stent is a tube i nserted into a blood ve ssel to keep a block ed passageway open. See Stent, Tabor’s Cyclopedic Medi cal Dictionary (23rd ed. 2017).‐ 3 - Thus, we must resolve whether t he crash caused by Levenson was a proximate cause of Martin’s death or, as Levenson argues, Mar tin’s consent to the administr ation of heparin was a superseding cause.
S TANDARD OF R EVIEW Generally, negligence and proxima te cause are factual findings and thus “are issues for a jury’s resolution. They only b ecome questions of law to be det ermined by a court, when reasonable minds could not differ. ” Hawkins v. Commonwealth, 6 4 Va. App. 650, 655, 770 S.E.2d 787, 789 (2015) (quoting Forbes v. Commonwealth, 27 Va. App. 304, 309, 498 S.E.2d 457, 459 (1998)). Further, “the fact ual findings of [a jury] a re not to be disturbed unless they are plainly wrong or are without evi dence to support them.” Wilkin s v. Commonwealth, 292 Va. 2, 7, 786 S.E.2d 156, 159 (2016).
A NALYSIS “Established principles of pr oximate causation are applicable in both civil and criminal
cases.” Brown v. Comm onwealth, 278 Va. 523, 529, 685 S.E.2d 43 , 46 (2009); Chapman v. Commonwealth, 68 Va. App. 131, 140, 804 S.E.2d 326, 331 (2017). A proximate cause is “an act or omission that, in natural and continuous sequence unbrok en by a superseding cause, produces a particular event and w ithout which that event would not have occurred.” Brown, 278 Va. at 529, 685 S.E.2d at 46 (quoting Williams v. Joynes, 278 V a. 57, 62, 677 S.E.2d 261, 264 (2009)). “Because an event can have more than one proximate ca use, criminal liability can attach to each actor whose conduc t is a proximate cause unless the causal chain is broken by a superseding act that becomes th e sole cause of the death.” Id. When a defendant’s criminally ne gligent conduct “put[s] into operation” an intervening cause of a death, the defendant remai ns criminally responsible for tha t death. Thus, an intervening ca use of such death that is a probable consequence of the defendant’s own conduct will not constitute a superseding cause breaking th e chain of proximate causation.‐ 4 - Id. (alteration in original) (cit ations omitted); see also Dorm an v. State Indus., 292 Va. 111, 123, 787 S.E.2d 132, 139 (2016) (“In order to r elieve a defendant of liability for his negligent act, the negligence intervening between t he defendant’s n egligent act an d the injury must so entirely supersede the operati on of the defendant’s negligence that it a lone, without any contributing negligence by the defendant in t he slightest degree, causes the injury.”). Furthermore, “an intervening cause is not a supe rseding cause if it was put into operation by the defendant’s wrongful act or omission.” D orman, 292 Va. at 123, 787 S.E.2d at 139; see Gallimore v. Commonwealth, 246 Va. 441, 448, 436 S.E.2d 421, 426 (1993) (aff irming appellant’s involuntary manslaughter conviction where appellant’s fabricati on of a kidnapping story put into operation a series of events th at led to the shooting of the vi ctim by a third party). Appellate courts in Virginia ha ve reasoned that medical treatm ent received by a victim is part of the causal chain put i nto operation by the defendant’s wrongful act or omission. In Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265- 66 (1998), the Supreme Court affirmed a murder convicti on where the victim died from a spiration of his vomit four days after he was shot. The Court reasoned, When a defendant has inflicte d wounds upon a victim that result in an affliction or a disease, the defendant is criminally respons ible for the victim’s death from that affliction or disease if the w ounds caused the death indirectly thr ough a chain of natural effects and causes. An intervening event, e ven if a cause of the death, do es not exempt the defendant from liability if that event was put i nto operation by the defendant’s i nitial criminal acts. Id. (internal citations omitted ). In Hawkins v. Commonwealth, 64 Va. App. 650, 656, 770 S.E.2d 787, 789 (2015), this Court affirmed appellant’s convict ion of aggravated malicious wounding where abdominal surger y for the bullet wound resulted in a large, permanent scar. This Court reasoned that “the s urgery did not relieve appellant from liability or break the chain of the causal connection betwee n the shooting and the scar beca use the surgery was a reasonably‐ 5 - foreseeable consequence of the shooting.” Id.; see also Smith v. Kim, 277 Va. 486, 491-92, 675 S.E.2d 193, 196 (2009) (“The general rule is that if an injured person uses ordinary care in selecting a physician for treatme nt of his injury, the law rega rds the aggravation of the injury resulting from the negligent ac t of the physician as a part of the immediate and direct damages which naturally flow from the or iginal injury.” (quoting Corbet t v. Clarke, 187 Va. 222, 224-25, 46 S.E.2d 327, 328 (1948))). Simply put, medical treatment is not a superseding cause if the need for the treatment was put into operation by the defendant’ s wrongful act or omission. 3 Applying these principles to Lev enson’s case, we cannot say th e trial court erred by denying Levenson’s motion to strik e the aggravated involuntary manslaughter charge. But for Levenson driving at a high rate of speed through a construction zone while intoxicated, Martin would not have been receiving the heparin and stent treatment t o save his leg. 4 Medical treatment was a reasonably fores eeable consequence of the car c rash and was put into operation by Levenson’s criminal conduct. Levenson is “criminally respon sible for [Martin’s] death”

3 See also State v. Fox, 810 N.W.2d 888, 894 (Iowa 2011) (holdin g victim’s own decision to remove life support not a supe rseding cause of death); State v. Murray, 512 N.W.2d 547, 550 (Iowa 1994) (concluding medical de cision to remove life support not a superseding cause of death because “the medical decisions that preceded the victim’s death were the product of the physical condition in which the victim had been placed as a res ult of [defendant’s act]. Consequently, those medical deci sions were part of a chain of e vents set in motion by the [defendant’s] act and leading dir ectly to the victim’s death.”) ; State v. Kirby, 39 P.3d 1, 17 (Kan. 2002) (holding physician’s ne gligent medical treatment no t a superseding cause); People v. Bailey, 549 N.W.2d 325, 335 (Mich. 1996) ( “Defendant cannot exo nerate himself from criminal liability by showing that under a different or more skillful tr eatment the doctor might have saved the life of the deceased and thereby have avoided the natural c onsequences flowing from the wounds.”); Commonwealth v. Green, 383 A.2d 877, 879 (Penn. 1978 ) (“[E]ven if the wound inflicted by the accused is not in i tself mortal and a subseque nt event is found to be the immediate cause of death, the accused does not escape legal lia bility if his act started an unbroken chain of causation l eading to the death.”).

4 We note that here there is no suggestion of medical negligence in the prescription of heparin by the doctors or in Marti n’s consent to the treatment. The medical expert testified that the other treatments, such as am putation of the leg or insertio n of a stent without heparin, were not medically advisable. Thus, t he fact that Martin consented to the medically recommended treatment, as opposed to other options, is not relevant to our analysis.‐ 6 - because the wounds received from the crash “caused death indire ctly through a chain of natural effects and causes.” Jen kins, 255 Va. at 521, 499 S.E.2d at 26 5. Martin’s treatment at the hospital was “put into operation” by Levenson’s criminally negl igent act. The fact that Martin consented to the treatment reco mmended to him by the team of tr auma doctors does not relieve Levenson of liability.
C ONCLUSION Because there was sufficient evidence from which the jury coul d conclude that Martin’s death was proximately caused by Levenson’s intoxicated driving, the trial court did not err in denying Levenson’s motion to strik e. Accordingly, we affirm Le venson’s conviction for aggravated involuntary manslaughter. Affirmed.